Interim Custody Orders and the Status Quo: Button v Konieczny

In this judgment by Justice Minnema of the Ontario Superior Court of Justice, the court grapples with the issue of interim custody orders and the analysis that must be undertaken to establish status quo.

While both parties agreed that the status quo is ordinarily to be maintained in the absence of material evidence that the child’s best interests demand an immediate change, the parties could not reach a similar consensus regarding the state of affairs prior to separation. As a result, the court was left to determine:

the status quo for custody and access purposes;

what interim order the status quo supports; and

whether the child’s best interests demand a change of the status quo.

Factual Background

The parties in this matter were married for five years, during which they had one son. Button, the Applicant Mother, and Konieczny, the Respondent Father, separated on March 20, 2012, but remained in the matrimonial home following the separation. The Mother commenced proceedings, and on March 26, 2012, in a letter from counsel, informed the Respondent that she wished to negotiate amicably. The father responded, making his desire known, that he wished for a shared parenting arrangement in which the child spends no less than 40% of his time with either party.

Shortly thereafter, the Applicant Mother spoke with a counsellor at Victim Services, and subsequently decided to report the Respondent to the police for threatening and bullying her. The Respondent Father was informed by police that he must leave the matrimonial home immediately or risk being charged. While initially the Applicant Mother remained in the home with the child, giving the Respondent Father restricted access on April 12, 2012, a “without prejudice” order was made on consent granting the Respondent Father unsupervised access every other weekend.

In June 2012, the parties attended two mediation sessions where it was determined that the Office of the Children’s Lawyer (OCL) would become involved. It was further determined that the parties would reserve a motion date in court to deal with the issue of interim custody.

Finally, on June 19, 2012, during the second mediation session, the parties entered into “Without Prejudice Short Form Minutes of Settlement” which extended the Respondent Father’s access to increased weekday access, including a Wednesday overnight.

Following mediation, the matter became more contentious as counsel became upset with one another over delays in the hearing of the interim motion and alleged insulting communications. Throughout, however, the Respondent Father denied allegations of abuse and the mother’s claim that she was the primary caregiver.

Analysis

First, Justice Minnema dealt with the issue of determining the status quo. While the Applicant Mother argued that the time sharing arrangement as of the date of the motion was the status quo, the Respondent Father asserted that the status quo was the situation as it stood “before the mother took unilateral action and forced him into the role of access parent.”

Citing Kimpton v Kimpton, Justice Minnema agreed that the status quo is “the primary or legal status quo, not a short lived status quo created to gain tactical advantage.” With that in mind, Justice Minnema opined that it would not be appropriate to penalize the Respondent Father for the five month gap in time it had taken to hear the motion. Nevertheless, Justice Minnema also recognized that “the decision to look at the pre-separation situation for the status quo does not mean that the court will ignore the current situation or what has transpired in the last five months.”

Second, Justice Minnema examined the parties’ dueling affidavits (of which over 25 were submitted) and the issue of which interim order the status quo supports. As always, the court emphasized the stability of the child and the sole test with regard to issues of custody and access: the best interest of the child. The court further recognized the apparent difficulty of making a decision based on “untested evidence” (as on a motion neither party has an opportunity to cross examine the other). In the end, Justice Minnema sided with the Respondent Father’s position, convinced that “the status quo…supports an order of shared parenting.”

Finally, Justice Minnema noted that it was up to the court to disregard the status quo if it was under the impression that maintenance of the status quo is not in the child’s best interests. The Applicant Mother’s counsel had made the argument that, in the interim five month period preceding the motion, the child had benefited from “a level of comfort and stability that given his age should not be interrupted.”

Citing the selling of the matrimonial home and the Father’s already generous access schedule, however, Justice Minnema determined that the child would suffer some disruption regardless and that his best interests would ultimately be served by maintaining the shared parenting status that existed prior to separation.

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